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Judgment
This appeal has been filed by the registered member, of Buildart Safety Glass Pvt. Ltd. (hereinafter referred to as "the Company"), under Section 252(3) of the Companies Act, 2013 for restoration of the name of the struck-off company in the Register of Companies maintained by the ROC, Kerala.
The facts, in brief, are that Company was incorporated on 10.09.2007 vide CIN: U26100KL2007PTC021199. The company has an Authorized Share Capital of Rs. 5,00,000/- and paid-up capital of Rs. 1,00,000/-. The registered office of the company is situated at XX19/485, Asirvad, Elamakkara P. O, Ernakulam, Kerala- 682 026. Hence, the Company falls under the jurisdiction of this Tribunal.
The Company was incorporated with the main objects as under:
“To undertake the business of manufacturing, trading or otherwise dealing in various kinds of building articles made of glass, metal and plastics”
Learned Counsel appearing for the Appellant submitted that the Company for the purpose of manufacturing glass, purchased land in Re. Survey No.272ll ll.2 (Survey No.272/1/1.2 (Survey No. 276/1,276/10,277/2/2,277/2/1) in Vadakarappathy Village of Chittur Taluk, Palakkad District. The Company also obtained the building permit for constructing 1307.01 Sq. Meter factory building with other facilities vide Building Permit No. A2/399/2010-11 dated 10.12.2010. It is stated that the Company has filed its annual return till the Financial Year 2009-2010 and filed the Income Tax Return upto the assessment Year 2010-2011.
The learned counsel further submitted that the operation was stopped due to mismanagement of one of the directors of the Company and he has appointed an additional director to the Company without the consent of the Appellant. The Appellant has challenged the decision of appointment of an additional director and further allotment of shares by filing a petition under Section 111, 397, 398, 402, and 403 of the Companies Act, 1956 before the NCLT, Chennai Bench in November 2011. The Tribunal at Chennai Bench vide order dated 15.12.2011 directed the parties to maintain the status quo and there was a further direction that the Board Meeting shall not be held without the further direction of the Tribunal. It is stated that since the adjudication of dispute was crucial to the continuing business of the Company, the business activities including the construction plans were stopped in the year 2011 itself.
The learned counsel submitted that the petition was later transferred to Kochi Bench upon its formation and the same was renumbered as TCP/06/KOB/2019. It is submitted that vide order dated 31st December 2O21, this Tribunal at Kochi Bench allowed the Company Petition and passed an order declaring that appointment of Mr. Gopalakrishnan Neelakantan as additional Director and issuance of shares to Respondent No. 2 to 7 as invalid.
On this Application, notice was given to the Registrar of Companies, Ernakulam, Kerala. RoC, in his Reply dated 25.07.2022 stated that the Ministry of Corporate Affairs vide communication dated 25.06.2019 had instructed all Regional Directors and Registrars of Companies to take strike off action against companies which have failed to file Financial Statements or Annual Returns as per Chapter XVIII of the Companies Act, 2013 and have not filed application under Section 455 (1) of the Companies Act, 2013 for making them as ‘Dormant’.
It is further stated by the AROC, Kerala, in the instant case, on verification of the documents of the subject company found that the company has not filed its Balance Sheets and Annual Returns since 2012. It had been defaulting in filing its Balance Sheet for the period 2011-12, 2012-13, 2013-14, 2014-15, 2015-16, 2016-17, 2017-18, 2018-19, 2019-20 & 2020-21 and Annual Returns for the period 2010-11, 2011-12, 2012-13, 2013-14, 2014-15, 2015-16, 2016-17, 2017-18, 2018-19, 2019-20 & 2020-21. ROC stated that the subject company has violated the provisions of Sections 92/137 of the Companies Act, 2013. ROC also stated that as per provisions of Section 248 read with relevant rules, notice had been issued to the company and its directors on 13.07.2019 giving 30 days’ notice period. However, no response received from them.
The AROC further submitted that even after complying with the due procedure, in absence of any representation against the proposed strike off action, the Registrar struck off the name of the company on 19.10.2019 and the same was published on the website of the Ministry vide STK -7.
Circumstances being above, the AROC submitted that the action of striking off the name of the Company was triggered due to negligence and lack of due diligence on the part of the directors of the Company for not discharging their statutory duties in filing the statutory returns within the due date stipulated under the Companies Act and also for not responding to the several periodical notices within the notice periods. Therefore, the action of strike off of the name of company is fully substantiated within the authority under the provisions of Section 248 of the Act and deserves the protection of this Tribunal.
We have considered the submissions made and the material available on record. From the records produced before us, it is noted that the company is owning land in Re. Survey No.272ll ll.2 (Survey No.272/1/1.2 (Survey No. 276/1,276/10,277/2/2,277/2/1) in Vadakarappathy Village of Chittur Taluk, Palakkad District. The Company also obtained the building permit for constructing 1307.01 Sq. Meter factory building with other facilities vide Building Permit No. A2/399/2010-11. Inspite of not having any business in the Company due to pending litigation, and the Company owns immovable property which is required to be dealt with and if the name of the Company is not revived, prejudice will be caused to the Company. Hence, it is a just ground as mentioned under Section 252 to revive the Company. It is also evident from the additional document produced by CA/16/KOB/2022- Annexure A/16 that the said Plot is allotted in the name of Buildart Safety Glass Private Limited.
Considering the above, we allow this appeal and restore the name of the company in the Register of Companies from the date of its striking off subject to payment of cost for non-compliance of rules relating to filing the Statutory Returns and Audited Financial Statements. We allow the appeal with the following directions;
ORDERS
(i) The Registrar of Companies, Kerala, the respondent herein, is ordered to restore the original status of the Company as if the name of the Company has not been struck off from the Register of Companies with resultant and consequential actions like changing status of Company from 'Struck off to Active.
(ii) The appellant is directed to file all pending statutory document(s) including Annual Accounts and Annual returns for the financial years in default along with prescribed fees/additional fee/fine as prescribed under the Companies Act, 2013.
(iii) The restoration of the Company's name is also subject to the payment of cost of ₹ 1,05,000 (Rupees One Lakh Five Thousand Only) through online payment in www.mca.gov.in under miscellaneous fee by mentioning particulars as "payment of cost for revival of Company
(iv) The Appellant is directed to deliver a certified copy of this order with ROC within thirty days of the receipt of this order as per the provisions of the Companies Act, 2013;
(v) On such delivery and after duly complying with the above directions, the Registrar of Companies, Kerala, is directed to, on his official name and seal, publish the order in the Official Gazette;
(vi) This order will not come in the way of ROC to take appropriate action(s) in accordance with the law, for any other violations/offenses, if any, committed by the Applicant Company prior, or during the striking off of the company.
The Company Appeal is allowed and disposed of accordingly.
Urgent certified copy of this order, if applied for, be issued upon compliance with all requisite formalities.
File be consigned to records.